The Delhi High Court in the case observed and has upheld the validity of Section 5(v) of the Hindu Marriage Act which states that no marriage can be solemnized between parties who are related to each other as “sapindas”, unless it is sanctioned by usage or custom governing them.
The Division bench comprising of Acting Chief Justice Manmohan and Justice Manmeet Pritam Singh Arora in the case observed and has stated that if the choice of a partner in a marriage is left unregulated, incestuous relationship may gain legitimacy.
In the Present case, the court was hearing the PIL moved by a woman seeking striking down of the provision. Thus, she was aggrieved by the order of Family Court declaring the marriage between her and her distant cousin as null and void as per the said provision. Last year, the coordinate bench dismissed her appeal against the same in October.
The bench stated that the woman failed to set out any grounds for challenging the prohibition encapsulated in the impugned provision and also failed to plead any legal grounds for challenging the restriction imposed therein.
The court observed that the petitioner neither identifies the basis of the said restriction imposed by the State and nor enlists any cogent legal ground for challenging the said impugned Section.
The court in the case observed and has refused to accept the woman’s contention that the impugned section is violative of Article 14 of the Constitution of India as the exception is only for marriages between persons on the basis of custom having force of law, which requires stringent proof and its existence is to be adjudicated upon by Court of law.
Therefore, the petitioner was unable to prove existence of custom in the facts of her case and has relied upon consent of parents which cannot take the place of custom.
Further, the said court find no merits in the challenge to Section 5(v) of the HMA Act in the present writ petition. Adding to it, the court stated that this court is of the considered opinion that no tenable grounds in law for challenging the said impugned provision have been placed before this Court during arguments or pleaded in the petition. The bench stated that the woman will be at liberty to initiate appropriate legal proceedings against her former husband before an appropriate forum in accordance with law.
Accordingly, the court dismissed the PIL.
The counsel, Advocates Mr. Tushar Kumar, Mr. Junaid Qureshi, Ms. Dishani Guha, Ms. Varnika Bajaj and Mr. Rishub Kapoor appeared for the Petitioner.
The counsel, Advocates Mr. Apoorv Kurup, CGSC, R-1/UOI with Mr. Akhil Hasija represented the respondent.
